SECOND AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT, dated as of January
2, 2000, by and among AIL Systems Inc., a Delaware corporation, EDO Corporation,
a New York corporation, and Xxxxx X. Xxxxx.
WHEREAS, AIL Systems Inc. ("AIL") and Xxxxx X. Xxxxx ("you") entered
into an employment agreement, dated as of April 29, 1998 (the "Employment
Agreement");
WHEREAS, contemporaneously with the date hereof, AIL and EDO
Corporation (the "Company") are entering into an Agreement and Plan of Merger
(the "Merger Agreement") pursuant to which AIL will become a wholly-owned
subsidiary of the Company;
WHEREAS, the Company desires that you assume the positions of Chief
Executive Officer and President immediately following the effective time of the
merger contemplated under the Merger Agreement (the "Effective Time") and you
are willing to assume such positions, all on the terms and conditions set forth
herein;
NOW, THEREFORE, the parties hereto agree as follows:
1. Effective Date. This Agreement shall be and become effective as of the
Effective Time. The Employment Agreement shall continue in full force in
effect until the Effective Time, at which time it shall be amended and
restated and superseded in its entirety by this Agreement. In the event
that the Merger Agreement is terminated in accordance with its terms or
that the Effective Time does not occur prior to June 15, 2000, this
Agreement shall be rendered void and without effect and none of the
parties hereto shall have any duties or obligations to, or rights against,
any other party.
2. Employment, Duties.
(a) Position and Duties. Subject to the terms and conditions of this
Agreement, the Company shall employ you as its Chief Executive
Officer and President from and after the Effective Time until the
expiration of the Term (as defined in Section 3) of this Agreement.
In such position, you shall be responsible for the day to day
operation and management of the Company and have such powers,
duties, responsibilities and indemnifications commensurate with your
experience and your position as Chief Executive Officer and
President as are set forth in the Company's By-Laws and as may be
assigned to you from time to time by the Company's Board of
Directors. You shall also serve, without additional compensation, in
such other position or positions with the Company and/or its
majority-owned subsidiaries commensurate with your experience and
position as Chief Executive Officer as the Board of Directors shall
assign to you at any time and from time to time.
(b) Report to the Board. You shall report directly to the Company's
Board of Directors. Immediately following the Effective Time, you
shall be elected as a member of the Board of Directors of the
Company. During the term hereof, you shall be duly and timely
nominated by the Board of Directors for reelection as a member of
the Board at all appropriate times.
(c) Working Time. You shall devote all of your working time, on an
exclusive basis, and except for vacations, periods of illness,
injury or other disability, to the business and affairs of the
Company.
(d) Location. Your principal place of employment shall be at the
Company's headquarters in New York City.
3. Term. The term of this Agreement shall be the period of three (3) years
commencing on the Effective Date (the "Term"). The Company shall give you
at least 90 days' written notice prior to the end of the Term regarding
whether it intends to negotiate in good faith an agreement with you to
replace this Agreement.
4. Compensation and Benefits. During the Term of this Agreement, the Company
shall pay to you, and you shall accept from the Company, as full
compensation for your services hereunder, the following:
(a) Base Salary. The Company shall pay to you a salary at the rate of
$425,000 per year ("Base Salary"), to be paid in accordance with the
Company's customary payroll practices. Base Salary will be reviewed
at least annually at or about April
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of each year by the Company's Compensation Committee in light of
competitive practices, the annual base salaries paid to other
executives of the Company and your performance and that of the
Company. Any increase in such base salary shall not reduce or
otherwise offset any other obligation of the Company hereunder.
(b) Other Compensation and Benefits. You shall be eligible to
participate in, on a basis commensurate with your position with the
Company as provided herein, all of the Company's employee
compensation and benefit plans and arrangements in effect at any
time or from time to time during the Term. You shall be entitled to
participate in or receive benefits under any employee benefit plan
or arrangement made available by the Company to its executives and
key management employees, subject to and on a basis consistent with
the terms and conditions thereof.
(c) Company Equity Awards. As of the Effective Time, you shall be
granted 25,000 shares of the Company's common stock which shall not
be transferrable and which shall remain subject to forfeiture until
vested in accordance with the terms of such award. Such restricted
shares shall generally vest in five approximately equal
installments, on each of the first five anniversaries of the date of
grant. The remaining terms and conditions of each such award shall
be as set forth in a separate award agreement to be entered into
between you and the Company.
(d) Car Allowance. During the Term, the Company will provide you with a
new vehicle every three years.
(e) Vacation. You shall be eligible for vacation benefits in accordance
with the Company's vacation policy. In no event, however, shall you
be provided less than four weeks of vacation during any calendar
year.
(f) Business Expenses. The Company shall reimburse you for reasonable
and necessary business expenses (including travel by business
class), in accordance with the Company's policies as the same may be
amended from time to time, and upon presentation of appropriate
documentation reasonably satisfactory to the Company.
5. Special Retention Payment. If you remain continuously employed on a
full-time basis by the Company for a period of one year following the
Effective Time, the Company will pay to you in a lump sum, within fifteen
days of the first anniversary of the Effective Time, an amount equal to
your Base Salary as in effect at the Effective Time.
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6. Termination of Employment. Your employment with the Company may terminate
upon the occurrence of the following circumstances:
(a) Death and Disability. Your death or your inability to perform your
duties hereunder by reason of disability, due to physical or mental
illness, for a period in excess of one hundred and eighty (180)
consecutive business days. Your employment may be terminated by the
Company by reason of your disability, pursuant to this subsection
(a) only if you do not return to work within thirty (30) days after
a notice of termination has been provided to you in writing by the
Company.
(b) Cause. Termination of your employment by the Company for "Cause",
which for purposes of this Agreement shall mean:
(i) the willful and continued failure by you to substantially
perform your duties hereunder (other than any such failure
resulting from your disability due to physical or mental
illness), after you have received from the Board of Directors
of the Company a written demand for substantial performance
that specifically identifies the manner in which the Board of
Directors believes you have not substantially performed your
duties and a reasonable opportunity under the circumstances to
cure any such failure; or
(ii) the willful engaging by you in gross misconduct materially and
demonstrably injurious to the Company.
For purposes of this subsection (b), no act, or failure to act, shall
be considered "willful" unless done, or omitted to be done, by you
not in good faith and without reasonable belief that your act or
omission was in the best interest of the Company. Notwithstanding the
foregoing, your employment shall not be deemed to have terminated for
Cause unless and until there shall have been delivered to you a copy
of a resolution duly adopted by the affirmative vote of not less than
three-quarters (3/4) of the membership of the Board of Directors of
the Company (excluding you) at a meeting of the Board of Directors
called and held for such a purpose (after reasonable notice to you
and an opportunity for you, together with your counsel, to be heard
before the Board of Directors), finding that in the good faith
opinion of the Board of Directors you were guilty of the conduct set
forth in this subparagraph (b) and specifying the particular details
thereof in detail. Such finding by the Board of Directors shall be
conclusive and binding upon all parties,
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and the Board of Directors is hereby granted discretionary authority
to make such determination.
(c) Retirement. Termination of your employment by you due to your
retirement in accordance with the terms of any Company
retirement plan in which you participate.
(d) Good Reason. Termination of your employment at any time by you
for "Good Reason." For the purpose of this Agreement, Good
Reason shall mean:
(i) without your express written consent, the assignment to
you of any duties inconsistent with your position,
duties, responsibilities and status at the Company, as
provided herein, or a change inconsistent with the
provisions of this Agreement in your reporting
responsibilities, titles or offices; provided that, in
the event that there occurs a Change of Control of the
Company (as defined in the Company's 1996 Long-Term
Incentive Plan, as currently in effect), you shall not
have "Good Reason" following such event under this
subclause (i) so long as you continue to be responsible
for the day to day operation and management of the
Company (or the successor in interest to the Company);
(ii) a reduction in your Base Salary (as defined in Section
4(a)), as the same may be increased from time to time.
(iii) failure to allow you to participate in the employee
benefit and executive compensation plans and
arrangements in accordance with the provisions of
Section 4(b).
(iv) the relocation of the Company's principal executive
offices to a location outside the New York metropolitan
area, or a requirement that you be based anywhere other
than the Company's principal executive offices or, in
the event you consent to any such relocation of the
Company's principal executive offices, the failure by
the Company to pay (or reimburse you for) all reasonable
moving expenses incurred by you relating to a change of
your principal residence in connection with such
relocation and/or to indemnify you against any loss
realized in the sale of your principal residence in
connection with any such change of residence. For
purposes of this paragraph, "loss" is defined as the
amount by which the higher of (a) your aggregate
investment in such residence and (b) the fair market
value of such residence as determined by any real estate
appraiser designated by you and reasonably
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satisfactory to the Company, exceeds the actual sale
price of such residence.
(v) the failure of the Company to obtain the assumption of,
and agreement to perform, this Agreement by any
successor (whether direct or indirect, by purchase,
consolidation or otherwise) to all or substantially all
of the assets of the Company, by agreement in form and
substance reasonably satisfactory to you.
7. Compensation Upon Termination.
(a) Death or Disability. If your employment is terminated by
reason of your death or disability pursuant to Section 6(a),
you or your estate, as the case may be, shall receive your
Base Salary through the date of your termination and such
other compensation and benefits to which you are entitled in
accordance with the terms and conditions of the compensation
and benefit plans and arrangements in which you are then a
participant.
(b) Cause.If your employment is terminated for Cause pursuant to
Section 6(b), you shall not be entitled to any compensation
for any period after termination, but you shall receive such
compensation and benefits for time worked prior to such
termination and to which you are entitled in accordance with
the terms of the compensation and benefit plans in which you
are then a participant.
(c) Good Reason; Without Cause. If your employment is terminated
by you for Good Reason pursuant to Section 6(c), or is
terminated by the Company for any reason other than death,
disability, Cause or mutual written agreement, the Company
will pay to you the amount set forth in subsection (i), below,
and in the manner provided in subsection (ii), below. Such
amount shall be in lieu of any other severance or termination
benefits to which you may be entitled under the Company's
plans, policies, programs or agreements.
(i) A termination payment ("Termination Payment") equal to:
(A) The product of (x) the number three multiplied by
(y) the sum of (A) your annual Base Salary as
defined in Section 4(a), plus (B) the average
annual Company incentive amount awarded to you for
the three years preceding the termination of your
employment (including, for this purpose, any
bonuses payable to you by AIL), or the previous
year's incentive if higher, minus
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(B) If your employment terminates on or after (but not
before) the first anniversary of the Effective
Time, an amount equal to the amount paid to you
pursuant to Section 5 times
(i) one, if your termination of employment with
the Company occurs at the first anniversary
of the Effective Time or
(ii) a fraction, the numerator of which is the
number of whole calendar months between the
termination of your employment and the end of
the three-year period following the Effective
Time, and the denominator of which is twenty-
four, if your termination of employment
occurs after such first anniversary and prior
to the third anniversary of the Effective
Time.
(ii) The Termination Payment will be paid in cash in a single sum
promptly following the date of termination. For the three-year
period following your termination of employment, you (and to
the extent covered at the date of your termination of
employment, your spouse and your eligible dependents) shall be
entitled to continued coverage under the Company's medical,
life and disability plans for employees, as the same may be
modified from time to time for employees generally, on the
same terms and conditions as though you had continued in the
Company's employ (or, at the Company's election, coverage
equivalent thereto). During the same period you shall be
entitled to five years (or up to age 65 whichever is earlier)
of continued participation service accrual under each employee
retirement plan in which you are then participating, whether
or not qualified (the "Pension Plans"), to a period not to
exceed the granting of credited service to all Plan
participants. Upon the completion of the period set forth
above, you will also be entitled to those benefits (or their
equivalent) to which retirees of the Company may be entitled
in accordance with the terms and conditions of the Pension
Plans and the medical and life insurance plans for retirees,
as those plans may be modified from time to time for employees
generally.
(iii) Notwithstanding the foregoing, in the event that the granting
of vested service accrual credit to you under the Pension Plan
could, in the reasonable opinion of the Company, adversely
affect the tax-qualified status of the Pension Plan, such
service credit shall not be granted. In lieu thereof, the
Company shall pay you, upon the expiration of the period set
forth in (ii) above, a single cash payment equal to the
actuarial equivalent of the increase in your retirement
benefit that would
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have resulted if the service credit had been granted. This
amount will be determined by the enrolled actuary regularly
consulted by the Company for the Pension Plan and shall be
made in accordance with the terms of the Pension Plan in
effect at that time. Such determination will be final and
binding upon all parties.
(iv) Upon a termination described in Section 7(c) prior to the
second anniversary of the Effective Date, all of the shares of
Company restricted stock granted pursuant to Section 4(c)
shall fully and immediately vested on the date your employment
terminates and all of the shares of the Company common stock
subject to stock options issued in substitution of the options
granted in respect of Ail common stock on December 3, 1999
(the "Special Grant") shall become and remain exercisable
thereunder for a period of one year from the date of your
termination of employment. Following the second anniversary of
the Effective Time, no special vesting shall be applicable to
the restricted shares or the Special Option in the event of
your termination of employment for any reason.
(v) Upon any termination described in Section 7(c) (whenever
occurring during the Employment Term), any options to purchase
Company stock granted in substitution of options (other than
the Special Option) granted to you prior to the Effective Time
under the AIL Stock Option Plan shall be deemed to be and
shall become fully vested and nonforfeitable and immediately
exercisable, and remain exercisable for three years after the
date of your termination of employment.
(vi) If your employment terminates prior to the date as of which
you shall have accrued the right to be paid the special
retention bonus payable under Section 5, the Company shall
also pay you an amount equal to the amount that would have
been payable to you thereunder on the first anniversary of the
Effective Time had you remained in the Company's employ.
(d) Full Satisfaction. Payment of any amounts under Section 7(c) shall
be in full and complete satisfaction of any claims that you may have
under this Agreement or otherwise arising in connection with your
employment with or termination of employment by the Company and/or
any of its subsidiaries; provided that nothing contained in this
Section 7(d) shall be construed to limit your right to any vested
benefits accrued or payable under the terms of any employee benefit
plan (other than any severance plan) established and maintained by
the Company, any vested
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rights under any equity based incentive award, whether granted to
you under the terms of this Agreement or otherwise, or any of its
subsidiaries or your right to indemnification with respect to his
service as an employee, officer or director of the Company or any of
its subsidiaries.
8 Gross-up Payment.
(a) Imposition of Excise Tax. In the event that any amount or benefit
paid or distributed to you pursuant to this Agreement, taken
together with any amounts or benefits otherwise paid or distributed
to you by the Company, any subsidiary or any affiliated company
(collectively, the "Covered Payments"), would be an "excess
parachute payment" as defined in Section 280G of the Internal
Revenue Code of 1986, as amended (the "Code"), and would thereby
subject you to the tax (the "Excise Tax") imposed under Section 4999
of the Code (or any similar tax that may hereafter be imposed), the
Company shall pay to you immediately following your termination of
your employment an additional amount (the "Tax Adjustment") such
that the net amount retained by you with respect to such Covered
Payments, after deduction of any Excise Tax on the Covered Payments
and any Federal, state and local income tax, employment tax and
Excise Tax (including any interest and penalties) on the Tax
Adjustment provided for by this Section 8, but before deduction for
any Federal, state or local income or employment tax withholding on
such Covered Payments, shall be equal to the amount of the Covered
Payments.
(b) Calculation Assumptions. For purposes of determining whether any of
the Covered Payments will be subject to the Excise Tax and the amount
of such Excise Tax,
(i) such Covered Payments will be treated as "parachute payments"
within the meaning of Section 280G of the Code, and all
"parachute payments" in excess of the "base amount" (as
defined under Section 280G(b)(3) of the Code) shall be treated
as subject to the Excise Tax, unless, and except to the extent
that, in the good faith judgment of the Company's independent
certified public accountants or tax counsel selected by such
Accountants (the "Accountants"), the Company has a reasonable
basis to conclude that such Covered Payments (in whole or in
part) either do not constitute "parachute payments" or
represent reasonable compensation for personal services
actually rendered (within the meaning of Section 280G(b)(4)(B)
of the Code) in excess of the "base amount," or such
"parachute payments" are otherwise not subject to such Excise
Tax, and
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(ii) the value of any non-cash benefits or any deferred payment or
benefit shall be determined by the Accountants in accordance
with the principles of Section 280G of the Code.
(c) Overpayment Adjustment. In the event that the Excise Tax is
subsequently determined by the Accountants or pursuant to any
proceeding or negotiations with the Internal Revenue Service to be
less than the amount taken into account hereunder in calculating the
Tax Adjustment made, you shall repay to the Company, at the time
that the amount of such reduction in the Excise Tax is finally
determined, the portion of such prior Tax Adjustment that would not
have been paid if such Excise Tax had been applied in initially
calculating such Tax Adjustment, plus interest on the amount of such
repayment at the rate provided in Section 1274(b)(2)(B) of the Code.
Notwithstanding the foregoing, in the event any portion of the Tax
Adjustment to be refunded to the Company has been paid to any
Federal, state or local tax authority, repayment thereof shall not
be required until actual refund or credit of such portion has been
made to you, and interest payable to the Company shall not exceed
interest received or credited to you by such tax authority for the
period it held such portion. You and the Company shall mutually
agree upon the course of action to be pursued (and the method of
allocating the expenses thereof) if your good faith claim for refund
or credit is denied.
(d) Underpayment Adjustment. In the event that the Excise Tax is later
determined by the Accountants or pursuant to any proceeding or
negotiations with the Internal Revenue Service to exceed the amount
taken into account hereunder at the time the Tax Adjustment is made
(including, but not limited to, by reason of any payment the
existence or amount of which cannot be determined at the time of the
Tax Adjustment), the Company shall make an additional Tax Adjustment
in respect of such excess (plus any interest or penalty payable with
respect to such excess) at the time that the amount of such excess is
finally determined.
(e) Timing of Payment. Any Tax Adjustment (or portion thereof) shall be
paid to you not later than 10 business days following the payment of
the Covered Payment to which it relates; provided, however, that if
the amount of such Tax Adjustment (or portion thereof) cannot be
finally determined on or before the date on which payment is due,
the Company shall pay to you by such date an amount estimated in
good faith by the Accountants to be the minimum amount of such Tax
Adjustment and shall pay the remainder of such Tax Adjustment
(together with interest at the rate provided in Section
1274(b)(2)(B) of the Code) as soon as the amount thereof can be
determined, but in no event later than 45 calendar days after
payment of the related Covered Payment. In the event that the amount
of
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the estimated Tax Adjustment exceeds the amount subsequently
determined to have been due, such excess shall constitute a loan by
the Company to Executive, payable on the fifth business day after
written demand by the Company for payment (together with interest at
the rate provided in Section 1274(b)(2)(B) of the Code).
(f) Impact of Section 8. Notwithstanding anything else to the contrary
contained in this Section 8, you shall not be required to take any
actions or pay any amounts under this Section that will in the
aggregate, cause you to receive less compensation (on a net-after tax
basis) than if this Section 8 was omitted from this Agreement in its
entirety.
9. Successors. As used in this Agreement, "the Company" shall mean the
Company as hereinbefore defined and any successor (whether direct or
indirect, by purchase, merger, consolidation, reorganization or otherwise)
to all or substantially all of the assets of the Company. This Agreement
shall inure to the benefit of and be enforceable by your personal or legal
representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
10. Covenants. Confidential Information. You acknowledge and agree that you
have and will come into contact with, have access to and learn various
technical and nontechnical trade secrets and other Confidential
Information, which are the property of the Company. Such Confidential
Information includes but is not limited to methods, procedures, devices
and other means used by the Company in the conduct of its business,
marketing plans and strategies, pricing plans and strategies, data
processing programs, databases, formulae, secret processes, machines and
adaptions thereto, inventions, research projects, and all other matters of
a technical nature, all of which Confidential Information is not publicly
available, but has been developed by the Company at its great effort and
expense; names and addresses of the Company's customers and their
representatives responsible for entering into contracts for the Company's
services, customer leads or referrals, specific customer needs and
requirements and the manner in which they have been met by the Company,
information with respect to pricing, costs, profits, sales, markets, plans
for future business and other development, all of which Confidential
Information is not available from directories or other public sources; and
information with respect to the Company's employees, their names and
addresses, compensation, experience, qualifications, abilities, job
performance and similar information. All of the Confidential Information
has been developed, acquired or compiled by the Company at its great
effort and expense.
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(a) Non-Disclosure of Confidential Information. Except as may be
required in the proper performance of your duties hereunder or as
may be compelled by administrative or judicial subpoena or other
process, you acknowledge and agree that any disclosure, divulging,
revealing or other use of any of the aforesaid Confidential
Information by you, other than in connection with the Company's
business will be highly detrimental to the business of the Company
and serious loss of business and pecuniary damage may result
therefrom. Accordingly, you specifically covenant and agree to hold
all such Confidential Information and any documents containing or
reflecting the same in the strictest confidence, and you will not,
both during employment with the Company or at any time thereafter,
without the Company's prior written consent, disclose, divulge or
reveal to any person whomsoever, or use for any purpose other than
the exclusive benefit of the Company, any Confidential Information
whatsoever, whether contained in your memory or embodied in writing
or other physical form.
(b) Covenant Not to Compete. You acknowledge and agree that the Company
is engaged in a highly competitive business, and by virtue of your
position and responsibilities with the Company, and your access to
the Confidential Information, engaging in any business which is
directly or indirectly competitive with the Company will cause it
great and irreparable harm. Consequently, you covenant and agree
that during the Term, or for the two-year period following your
termination of employment hereunder, you shall not directly or
indirectly own, manage, operate, control, be employed by,
participate in, or be connected with, in any manner (other than as a
shareholder of less than 2% of the outstanding equity of any
publicly traded company), any business engaged in whole or in part
in the pursuit of electronic counter-measures, environmental
monitoring, radar systems or satellite communications in the
continental United States, the same being the same geographic area
in which the Company's business is conducted, without the prior
written specific consent of the Company. If requested, this consent
shall not be unreasonably withheld where the elements of competition
are not direct, or specific, to the Company's business.
(c) Non-Solicitation of Customers. You acknowledge and agree that during
the course and solely as a result of your employment with the
Company, you have and will become aware of some, most or all of the
Company's customers and clients, their names and addresses, their
representatives responsible for engaging the Company's services,
their specific needs and requirements, and lead and referrals to
prospective customers and clients. You further acknowledge and agree
that the loss of such customers and clients would cause the Company
great and irreparable harm. Consequently, you covenant and agree
that in the event of the termination of your employment with the
Company, whether voluntarily or
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involuntarily, you will not, for the two year period following your
termination of employment hereunder, directly or indirectly solicit
to do business of a nature that is directly or indirectly
competitive with the business of the Company or any of its
subsidiaires with any customer or client, former customer or client
or prospective customer or client of the Company with whom you came
into contact while employed by the Company or who was known to you
to be a current, former or prospective customer or client of the
Company. For purposes of the immediately preceeding sentence, a
person or entity shall be treated as a prospective customer only if
and to the extent that the Company has undertaken a deliberate
effort to obtain the business of such person or entity and has a
reasonable expectation of obtaining such business.
(d) Non-Solicitation of Employees. You acknowledge and agree that during
the course of employment by the Company, you have and may hereafter
come into contact with some, most or all of the Company's employees,
their knowledge, skills, abilities, salaries, commissions, benefits
and other matters with respect to such employees not generally known
to the public. You further acknowledge and agree that any
solicitation, luring away or hiring of such employees of the Company
will be highly detrimental to the business of the Company and will
cause the Company serious loss of business and great and irreparable
harm. Consequently, you covenant and agree that during the course of
employment by the Company and for the two year period following the
termination of your employment hereunder, you shall not directly or
indirectly, on behalf of yourself or another, solicit, lure or hire
any employees of the Company of whom you became aware while employed
by the Company, or assist or aid in any such activity.
(e) Enforcement of Covenants. You acknowledge and agree that compliance
with the covenants set forth in this Section 10 is necessary to
protect the business and goodwill of the Company and that any breach
of this Section 10 or any subparagraph hereof will result in
irreparable and continuing harm to the Company, for which money
damages may not provide adequate relief. Accordingly, in the event
of any breach or anticipatory breach of Section 10 by you, the
Company and you agree that the Company shall be entitled to the
following particular forms of relief as a result of such breach, in
addition to any remedies otherwise available to it at law or equity:
(a) injunctions, both preliminary and permanent, enjoining or
restraining such breach or anticipatory breach, and you hereby
consent to the issuance thereof forthwith and without bond by any
court of competent jurisdiction; and (b) recovery of all reasonable
sums and costs, including attorneys' fees, incurred by the Company
to enforce the provisions of Section 10.
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(f) Prior Commitments. The covenants set forth in this Section 10
supplement, and do not supersede, the covenants contained in any
other agreement between you and the Company.
(g) Interpretation. Nothing in Section 10(c) or (d) shall be construed
to prevent any entity to which you provide services from
independently enagaging in conduct of a nature and type that you
would be prohibited from undertaking by reason of such Sections so
long as you do not, directly or indirectly, assist such entity in
such conduct.
11. Arbitration of Disputes and Jury Waivers. Except as set forth in Section
10 of this Agreement, the parties hereto agree to arbitrate any dispute,
claim, or controversy (claim) against each other arising out of the
cessation of your employment, any claim of unlawful discrimination or
harassment that might or did arise during or as a result of your
employment which could have been brought before an appropriate government
administrative agency or in an appropriate court, including but not
limited to claims of age discrimination under the Age Discrimination in
Employment Act of 1967, as amended, as well as any claim or controversy
under this Agreement.
The arbitration shall be arbitrated by one arbitrator in accordance with
the National Rules for the Resolution of Employment Disputes of the
American Arbitration Association. The parties hereto agree that the
arbitration shall take place in Suffolk County, New York. The arbitrator's
fees will be shared equally by the parties. The decision or award of the
arbitration shall be final and binding upon the parties. Any arbitral
award may be entered as a judgment or order in any court of competent
jurisdiction.
Any claims under Section 10 of this Employment Agreement shall not be
subject to arbitration, but shall be subject to the remedies set forth
therein.
(a) Jury Trial. If for any reason this Arbitration Provision is declared
unenforceable, you agree to waive any right you may have to a jury
trial with respect to any dispute or claim against the Company
relating to this Agreement, your employment, and the termination or
modification of any terms and conditions of employment, including
but not limited to claims of age discrimination under the Age
Discrimination in Employment Act of 1967, as amended.
(b) Xxxxx.Xx the event this Arbitration Provision is declared
unenforceable for any reason, or in the event of any litigation
arising pursuant to Section 10 of this Employment Agreement, the
parties agree that, with respect to any litigation
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arising pursuant to this Agreement, Suffolk County, New York shall
be the only proper county for purposes of venue. The parties further
agree that they will submit to the personal jurisdiction of any
Court (Federal or State) located within New York State.
12. Miscellaneous.
(a) Waiver. No waiver or modification of the Agreement, nor any portion
hereof, shall be valid unless in writing and signed by you and such
officers as may be specifically designated by the Board of Directors
of the Company. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent
time. Any Notice of Termination by you must be given not later than
forty-five (45) days after the occurrence of the event which you
claim to constitute Good Reason and any Notice of Termination by the
Company must be given not later than forty-five (45) days after the
Company becomes aware of the occurrence of the event claimed by the
Company to constitute Cause or Disability. Subject to the preceding
sentence, any failure by the Company to claim promptly that any
event constitutes Cause, or failure by you to claim promptly that
any event constitutes Good Reason, shall not preclude either the
Company or you from claiming subsequently that such event or any
earlier or later event constitutes Cause or Good Reason. No
agreements or representation, oral or otherwise, express or implied,
with respect to the subject matter hereof have been made by any
party which are not set forth expressly in this Agreement.
(b) Notices. All notices required or permitted to be given under the
terms of the Agreement, or which any of the parties desires to give
hereunder, shall be in writing and delivered personally or be sent
by registered mail or certified mail, postage prepaid, return
receipt requested, or by reputable private courier addressed as
follows:
If to the Company: EDO Corporation
00 X. 00xx Xx.
Xxx Xxxx, Xxx Xxxx
Attn: Secretary
If to you: Xx. Xxxxx X. Xxxxx
0 Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
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Any party may change the address to which notice is to be sent to it
or to him by notice in writing to the other party as provided above.
(c) Governing Law. This Agreement shall be subject to and governed by
the laws of the State of New York without regard to its conflict of
laws provisions.
(d) Severability. If any provision(s) of this Agreement shall be found
invalid or unenforceable, in whole or in part, then such
provision(s) shall be deemed to be modified or restricted to the
extent and in the manner necessary to render the same value and
enforceable, or shall be deemed excised from the Agreement, as the
case may require, and this Agreement shall be construed and enforced
to the maximum extent permitted by law, as if such provision(s) had
been originally incorporated herein as so modified or restricted or
as if such provision(s) had not been originally incorporated herein
as the case may be.
(e) Legal Fees and Expenses. If, following any final adjudication of
any proceding, you shall have prevailed as to at least one material
issue presented in any arbitration or other contest regarding your
rights or obligations under this Agreement or regarding the validity
or enforceability of any provision of this Agreement, the Company
shall pay any legal fees and expenses which you shall have incurred
as a result of such arbitration or contest.
(f) Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original.
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EDO CORPORATION
By:_________________________________
Name:
Title:
AIL SYSTEMS INC.
By:_________________________________
Name:
Title:
_________________________________
XXXXX X. XXXXX
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